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District Court 14 November 2022

SafeWork NSW v Autocare Services Pty Ltd

[2022] NSWDC 547

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS PLEA OF GUILTY PLEA TO ELEMENTS OF OFFENCE

Citation: SafeWork NSW v Autocare Services Pty Ltd [2022] NSWDC 547
Court: District Court of New South Wales
Date: 14 November 2022
Judge(s): Russell SC DCJ

Background

Autocare Services Pty Ltd operated a finished vehicle logistics business, transporting cars by road across Australia using heavy multi-vehicle carrier trailers. On 15 May 2019, a truck driver employed by Autocare was performing running repairs on the air lines of a vehicle transportation trailer during his night shift. While he worked, a deck of the trailer descended and crushed him. He died as a result.

SafeWork NSW prosecuted Autocare under s 32 of the Work Health and Safety Act 2011 (NSW), alleging it had failed to discharge its primary duty under s 19(1) to ensure, so far as reasonably practicable, the health and safety of its workers. Autocare entered a guilty plea on 29 April 2022 but disputed certain particulars of the alleged failures set out in the Amended Summons.

The matter came before Russell SC DCJ for a disputed facts hearing over three days in November 2022. By the time of that hearing, the parties had agreed on a broad Statement of Agreed Facts, but a live contest remained over whether several specific measures were ones Autocare could and should reasonably practicably have taken to eliminate or minimise the risk.

  • Whether Autocare's failure extended beyond what it had admitted, specifically whether it had also failed to implement safe work procedures, provide isolation devices, provide relevant training, or enforce authorisation requirements for non-maintenance workers undertaking minor repairs.
  • Whether the prosecution had discharged its burden of proving that the additional measures particularised in the Amended Summons were "reasonably practicable" within the meaning of s 18 of the Work Health and Safety Act 2011 (NSW).
  • Whether evidence of steps taken by Autocare after the incident could assist in establishing what was reasonably practicable before it.

Decision

Autocare admitted two of the alleged failures outright. It conceded that it had failed to prohibit non-maintenance workers (such as the deceased) from undertaking minor fault fixing or repair work on trailers (paragraph 14(a)), and it also accepted that it had failed to enforce a requirement for non-maintenance workers to seek authorisation from the maintenance supervisor before undertaking such work (paragraph 14(b)(v)). The prosecution abandoned the particular relating to an Operator's Manual during the hearing.

The remaining contest focused on three further alleged failures: failing to develop and implement a safe work procedure for airline repairs (par 14(b)(ii)), failing to provide an isolation device such as lock-in pins or props to support suspended decks (par 14(b)(iii)), and failing to provide training to non-maintenance workers on safe work procedures (par 14(b)(iv)). On each of these, the court found the prosecution had not established that the measures were reasonably practicable.

The court reasoned that, to prove a measure was "reasonably practicable," the prosecution needed to satisfy the requirements of s 18 of the Act, including the availability and suitability of the way to eliminate or minimise the risk, and the knowledge that persons engaged in the relevant field of activity would have had. The prosecution led no guidance material or expert evidence to demonstrate any of this in respect of the contested particulars.

Regarding post-incident conduct, the court acknowledged that steps taken after an incident are admissible on the question of what was reasonably practicable before it, citing the Court of Criminal Appeal's decision in Poletti. However, what Autocare actually did after the incident was to reinforce and enforce the existing prohibition on non-maintenance workers carrying out running repairs. That post-incident conduct supported the admitted particulars (14(a) and 14(b)(v)), but it did not establish the additional measures alleged in 14(b)(ii), (iii) and (iv). The Agreed Statement of Facts confirmed that a prohibition on running repairs by non-maintenance workers had existed before the incident; it had simply not been enforced.

Orders Made

  • The court noted that Autocare accepted it had committed a breach of duty by failing to take the measures particularised in paragraphs 14(a) and 14(b)(v) of the Amended Summons.
  • The prosecution failed to establish that the measures particularised in paragraphs 14(b)(ii), (iii) and (iv) of the Amended Summons were reasonably practicable.
  • The matter was adjourned to 13 December 2022 for finalisation of the sentence hearing.

Key Takeaways

  • Under s 18 of the Work Health and Safety Act 2011 (NSW), a prosecution must affirmatively prove that each specific measure pleaded was reasonably practicable, including its availability, suitability, and consistency with what persons in the relevant field of activity would have known. Absence of guidance material or expert evidence on those points will leave the prosecution short.

  • The District Court confirmed that post-incident steps taken by a defendant are admissible evidence on the question of what was reasonably practicable before an incident, consistent with the New South Wales Court of Criminal Appeal's approach in Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243. However, post-incident conduct only goes as far as the specific measures it evidences.

  • A guilty plea to the elements of a WHS offence does not resolve all factual disputes relevant to sentencing. Particulars in a summons may themselves be contested, requiring a separate disputed facts hearing before the sentencing exercise can be completed.

  • Where the prosecution's pleaded particulars included multiple alternative alleged failures, the court assessed each separately. Admissions on some particulars did not carry over to establish others where independent evidentiary support was absent.

  • Proof that a safety rule existed but was poorly observed (described in the judgment as "more honoured in the breach than the observance") supported a finding that the real failure was enforcement of the existing prohibition, rather than any of the additional procedural or training measures the prosecution sought to establish.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 39

Cases:
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304